Northside Sanitary Landfill, Inc. v. Dodd

No. C82-84 (Ind. Cir. Ct. April 24, 1982)

The court declares that a county ordinance imposing licensing and inspection requirements and a taxing scheme on hazardos wastes transported through and disposed of within Boone County, Indiana is unconstitutional and preempted by state law. The court rules that the ordinance places an undue burden upon the transportation and flow of wastes in interstate commerce. It also rules that the ordinance violates a state law prohibiting, in the absence of express statutory authority, local regulation of conduct that is regulated by a state agency. The Environmental Management Board is expressly authorized, pursuant to the Hazardous Waste Act, to regulate the transportation, treatment, storage, and disposal of hazardous wastes generated in or transported into the state. In addition, the court rules that the charges established by the ordinance constitute an unauthorized imposition by a locality of a tax upon the transportation and disposal of hazardous wastes. Finally, the court rules that several of the ordinance's provisions effectively deny the owners of a county landfill site the vested use of their property and deprive them of its authorized use without just compensation in violation of the Fourteenth Amendment.

Counsel for Plaintiff
Warren D. Krebs
Parr, Richey, Obremskey & Morton
225 W. Main St., Lebanon IN 46052
(317) 482-0110

Counsel for Defendants
Michael J. Andreoli, County Attorney
Donaldson, Andreoli & Truitt
129 N. Meridian, Lebanon IN 46052
(317) 482-0710

[12 ELR 21048]

Drury, J.:

Findings of Fact and Conclusions of Law and Permanent Injunction and Declaratory Judgment

Comes now the Court and having heard evidence submitted by all parties to this action regarding the legality of Boone County Ordinance No. 81-3 on March 23 and 24, 1982, and again at the final trial on the merits, the Court now finds that no issue exists as to the following material facts:

Findings of Fact

1. That according to the only evidence presented on the subject during the trial of this matter, apparently no-one does or could know at this time the long term detrimental, dangerous or unhealthy effects of hazardous waste; yet all evidence and testimony in this matter from witnesses representing the Indiana State Board of Health indicates that all necessary and appropriate testing and monitoring have been, are being, and will cotinue to be done, and that no danger or hazard presently exists at the Northside Sanitary Landfill in Boone County, Indiana.

2. That the public should and can reasonably expect the Indiana State Board of Health and Indiana Attorney General to take appropriate action when and if environmental conditions at the Northside Sanitary Landfill become detrimental to human health and safety, or become otherwise dangerous or hazardous to the public.

3. That the Board of County Commissioners of Boone County, Indiana, both as individuals and as elected officials, have a valid personal concern, with good reason, as to the transportation and/or dumping of hazardous waste and/or sewage sludge in Boone County, Indiana.

4. That the residents of Boone County, and specifically the residents of Union Township around or near the Northside Sanitary Landfill, and specifically, those people living downstream of the Northside Sanitary Landfill, all share a valid personal concern, with good reason, as to the transportation and/or dumping of hazardous waste and/or sewage sluge in any area around or near their homes.

5. That this Court personally shares the concern of the Commissioners and residents of all of Boone County as to the transportation and/or dumping of hazardous waste and/or sewage sludge in any area of Boone County, Indiana.

6. That this matter, as it is before the Court, does not embody the personal concerns, with or without good reason, of the Commissioners, the Court, or the residents of Boone County as to the virtue or peccancy of the Northside Sanitary Landfill or hazardous waste or sewage sludge; but rather this matter as it is before the Court purely and simply involves the legality and validity of Boone County Ordinance No. 81-3 as enacted by the Board of County Commissioners of Boone County, Indiana, on March 1, 1982.

7. That Boone County Ordinance No. 81-3 entitled "Waste Transportation and Facility Ordinance of Boone County Indiana" was adopted by the Board of County Commissioners on March 1, 1982, and contains an emergency clause stating that the Ordinance "shall be in force and effect from and after its passage."

8. That prior thereto on November 2, 1981, the Board of Public Works of the City of Indianapolis did by public bidding award to the Plaintiff Northside a contract for the transportation and disposal of municipal treatment plant sewage sludge at Northside's Landfill in Union Township of Boone County and at quantities not to exceed 300 wet tons per day pursuant to disposal approval issued by the Technical Secretary of the Indiana Environmental Management Board on October 8, 1981.

9. That at the time of the State's approval on October 8, 1981, and the City's bid award of November 2, 1981, and until the adoption of the Ordinance on March 1, 1982, Boone County had no ordinance or regulations governing the transportation, treatment or disposal of hazardous wastes or other wastes except for an ordinance adopted by the Commissioners on July 15, 1968, regulating only the disposal of "garbage" and "rubbish."

10.That although the Commissioners became aware of allegations regarding environmental problems at Northside and issues of hazardous waste disposal from a zoning meeting of the Boone County Plan Commission held in March, 1981, and from the Commissioners Public Meeting in March, 1981, nevertheless, the Commissioners and the Boone County Health Department did not begin drafting a waste ordinance until after the bid award on November 2, 1981.

11. That a public meeting was held in Zionsville, Indiana to further discuss a proposed agreement between Northside Sanitary Landfill, Inc., and the Board of Commissioners of Boone County and the relation of such an agreement to proposed Boone County Ordinance 81-3.

12. That while the personal philosophies of the Board of Commissioners of Boone County indicate a preference to not having Indianapolis municipal treatment sludge and hazardous waste [12 ELR 21049] brought to or deposited in Boone County, the Commissioners have indicated an understanding and have been advised by legal counsel that the law allowing them to prohibit such conduct is to the contrary.

13. That the legislative history of this Ordinance as contained in the Transcripts of the meetings of the Commissioners from December 7, 1981 to March 8, 1982, specifically indicates and states, that the intent of the Commissioners in adopting said Ordinance was only to "stop the sludge and the hazardous waste in our area" and to "keep this sludge in Marion County where they can control it and that's where I think we need to put the penalty" and "to prosecute" those hauling sludge and hazardous waste; and since "we have been let down by the State Board of Health in the situation by allowing hazardous waste to go in as sludge and/or hazardous waste"; and that "the purpose of this meeting is to read Ordinance 81-3, the final reading on the Northside Landfill." (Transcripts of March 1, 1982, pages 3, 44, 45, 46 and 51; Transcript of December 7, 1981, pages 8, 10, and 11; and Transcript of December 14, 1981, pages 33 and 34.) All three (3) Commissioners testified that they are opposed to the disposal of sludge and hazardous wastes within Boone County.

14. That Plaintiff Northside accepts and disposes of waste from many parts of Indiana and some waste from outside the State of Indiana and is involved in interstate commerce. Furthermore, Northside disposes of hazardous wastes generated both from within Boone County and from outside of Boone County.

15. That the Ordinance penalizes those transporting and/or disposing of hazardous wastes by taxing such individuals for all wastes which they transport or dispose of within Boone County, Indiana, and places an undue burden upon the transportation of wastes in interstate commerce by the imposition of transportation licensing, inspections, fees and taxes.

16. That additionally, the imposition of disposal taxes and the development of restrictions and standards on hazardous wastes, which include definitions ten times more restrictive than both federal and state statutes and regulations and limited operational hours for landfills, will also unduly burden the flow of wastes in interstate commerce.

17. That Plaintiff Northside possesses an Interim Status Permit from the U.S. Environmental Protection Agency allowing it to operate as a hazardous waste facility pursuant to U.S. Code § 6925(E), and has additionally made application to operate as a hazardous waste facility pursuant to 320 IAC 4-9-1 with the Indiana Environmental Management Board and is currently allowed to operate as a hazardous waste facility by the Hazardous Waste Management Branch, Division of Land Pollution Control, of the Indiana State Board of Health. (Plaintiffs' exhibit #29.)

18. That the Ordinance states that the "fees and charges" provided for in the Ordinance are for the purpose of "protecting the public health and promoting the safety and general welfare of the citizens of Boone County, Indiana" rather than for providing services directly to the Plaintiffs. Unless passed on to its customers the 10> per cubic yard transportation charge would take approximately 42% of Northside's three (3) year average profit before taxes, and the 10> disposal charge an additional 42%.

19. That the original draft of the Ordinance was prepared by the consultant and attorney for C. Harvey Bradley who has previously brought unsuccessful litigation against Plaintiffs Bankerts opposing the 1977 zoning of thirty-two (32) acres of the landfill site for its present usage. The adopted Ordinance is substantially similar to the Bradley draft with only a few changes, and the Ordinance contains fees and charges as computed by Bradley's consultants and based totally upon the business of Northside, with the exception of the Two Hundred Dollar ($200.00) transportation license fee. The Boone County Health Department was not involved in the drafting process and made no suggested changes except for technical analysis of the draft submitted by the County Attorney and the lowering of set-back distances.

20. That the real estate consisting of approximately one hundred two (102) acres owned by Plaintiffs Bankerts and on which the operation of the Plaintiff Northside is conducted has previously been properly zoned by the County's Plan Commission, Commissioners and/or Board of Zoning Appeals for the purpose of conducting a landfill operation; and set-back provisions in the Ordinance from streams, creeks, ditches and the church would terminate the usage of all but approximately two (2) acres for disposal of hazardous wastes or even the disposal of non-hazardous wastes if Northside accepts any amount of hazardous wastes as defined by the County in Article III(B) of the Ordinance.

21. That the Commissioners did adjourn the hearing on the Ordinance held on March 1, 1982 and reconvened shortly after the public had left, and at which time the Ordinance was adopted. Although recordings are normally kept of all official meetings of the Commissioners as required by I.C. 36-2-2-11, and were kept of the five (5) meetings at which this Ordinance was discussed, no such recording or transcript was kept of the meeting during which the vote was conducted.

22. That unless the Defendants are enjoined, Plaintiffs will be damaged by liability for extensive fees and charges, for civil and criminal penalties, and taking of its property without due process of law and without just compensation, and by continued interference with its legal rights as specified herein.

Conclusions of Law

Furthermore, the Court hereby makes the following conclusions of law:

1. A declaratory judgment is appropriate to determine the rights and status of Plaintiffs as affected by Ordinance 81-3, and to settle and to afford relief from uncertainty and insecurity with respect to such rights, status and other legal relations.I.C. 34-4-10-2 & 12.

2. Plaintiffs will have no adequate remedy at law for continued interference by Defendants with the rights of Plaintiffs set forth herein, and a permanent injunction is appropriate here to grant Plaintiffs' relief from acts which would produce great injury to the Plaintiffs. I.C. 36-1-10-1 & 2.

3. The Court hereby determines that the public interest will be promoted and not harmed by the granting of the application for permanent injunction.

4. The interstate transportation and movement of waste is subject to the Commerce Clause of the United States Constitution, and transportation regulations, fees and taxes of the type contained in the Ordinance, and the regulations and taxing scheme a substantial burden on interstate commerce, especially since they are developed by a local unit of government and are not uniform in application through the state. City of Philadelphia v. State of New Jersey, 437 U.S. 617, 57 L. Ed. 475 [8 ELR 20540] (1978); Nippert v. City of Richmond, 327 U.S. 416, 90 L. Ed. 760 (1946); and Browning-Ferris v. Anne Arundel County, Maryland, 438 A.2d 269 [12 ELR 20264] (1981).

5. I.C. 36-1-3-5 (1980) provides that "a (local) unit may exercise any power it has to the extent that the power is not expressly granted to another entity"; and I.C. 36-1-3-8 provides that "a (local) unit does not have the power to regulate conduct that is regulated by a state agency, except as expressly granted by statute." The Environmental Management Board is expressly required "to regulate and require the proper and safe transportation, treatment, storage, and disposal of any hazardous waste that is generated in or transported into the state" pursuant to provisions of the Hazardous Waste Act (I.C. 13-7-8.5-1 et al., Acts of 1980, P.L. 103, § 9) and the amendments thereto by the Acts of 1981, P.L. 95 §§ 2 and 3. Additionally, local units would be preempted from adopting ordinances and regulations for the operation of hazardous waste facilities, when and if such regulations would be inconsistent with statutory definitions and standards and with standards and regulations established by the Indiana Environmental Management Board, pursuant to the provisions of the Hazardous Waste Act and the Hazardous Waste Facility Site Approval Act, I.C. 13-7-8.6-1 et al.; Acts of 1981, P.L. 95 § 5.

Furthermore, "the state board of health is the superior health board of the state, to which all other health boards are subordinate" (I.C. 16-1-3-1) and the "state board may remove any local health officer in the state" (I.C. 16-1-3-17). I.C. 16-1-7-33 states that "the board of each full-time local health department may adopt such rules and regulations for its own guidance and as may be deemed necesary or desirable to protect, promote, or improve public health or to control disease, not inconsistent with this act, [12 ELR 21050] laws of the state and regulations of the state board." I.C. 16-1-3-2 expressly provides that "the state board shall have supervision of the health and life of the citizens of the state and shall possess all powers necessary to fulfill the duties prescribed in the statutes," and I.C. 16-1-3-27 grants the State Board the "police power to abate or prevent the pollution of streams, rivers, lakes and other bodies of water."

The Ordinance would, if enforced, either "prohibit or unduly restrict the transportation of hazardous waste through its area of jurisdiction (Boone County) which is enroute to a facility" and "the treatment, storage, or disposal of hazardous waste at a facility within its jurisdiction (Boone County)" by the combination of taxation schemes, transportation licensing and inspection, and facility requirements. I.C. 13-7-8.6-13(B).

6. A charge is a tax rather than a fee if it is structured not only for the payment for benefits received by the taxed entity, but also for payment of the protective services rendered the public by the governmental agency or unit and actually provides for rights of government which are enjoyed by all citizens alike. National Cable Television Association v. FCC, 415 U.S. 336, 39 L. Ed. 2d 370 (1974); Orbison v. Welsh, 242 Ind. 385, 179 N.E.2d 727 (1962); and City of Crown Point v. High Meadows, Inc., Ind. App. , 362 N.E.2d 1166 (1977). The Court has found that the "fees" here are expressly stated to be for "protecting the public health and promoting the safety and general welfare of citizens in Boone County, Indiana," and therefore are actually taxes.

7. I.C. 36-1-3-8 provides that "a (local) unit does not have the power to impose a tax, except as expressly granted by statute"; and the legislature of this state has not authorized local units to impose taxes upon the transportation or disposal of wastes and/or hazardous wastes, and in fact, has itself provided for the taxation of hazardous wastes by the Indiana Environmental Management Board and the Indiana Department of Revenue. I.C. 6-6-6.6-1 et al.

8. I.C. 36-1-3-8 provides that "a (local) unit does not have the power to prescribe a penalty for conduct constituting a crime or infraction under statute" and therefore, the criminal penalties provided for in the Ordinance are illegal in the criminal penalties are provided for the violation of environmental laws by I.C. 13-7-13-3.

9. The Fourteenth Amendment of the Constitution of the United States provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Several of the provisions in the Ordinance including the taxation scheme, the set-back distances in Article V(A) for a hazardous waste facility, the classification and definition of "hazardous waste" in Article III, the adoption of disposal methods forbidden by the Environmental Management Board at Northside, and the limitation on operating hours would effectively deny Plaintiffs Bankerts the vested use of their property and deprive them of its authorized purpose without just compensation. Board of Zoning Appeals of Fort Wayne v. Shell Oil Co., 164 Ind. App. 497, 329 N.E.2d 636, 642 (1975); Knutson v. State, 239 Ind. 656, 160 N.E.2d 200 (1959). Except for the dwelling set-back of 200 yards, the Article V(A) set-backs are not included in 330 IAC 4-1-1 et al. (SPC-18; Intervenor's Exhibit 2) under which Plaintiff is licensed by the State.

10. If necessary to support the judgment entered herein in this action, any findings of fact herein denominated a conclusion of law shall be redenominated a finding of fact, and any conclusion of law denominated herein a finding of fact shall be redenominated a conclusion of law.

Declaratory Judgment and Permanent Injunction

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECLARED by this Court that Boone County Ordinance 81-3 entitled "Waste Transportation and Facility Ordinance of Boone County, Indiana," as adopted on March 1, 1982, is void as a matter of law as set forth within the Conclusions of Law and the Findings of Fact herein as to the Plaintiff Northside Sanitary Landfill, Inc., and its rights and customers, and as to the Plaintiffs Jonathan W. Bankert and Patricia A. Bankert and their rights incorporated herein.

FURTHERMORE, IT IS ORDERED AND ADJUDGED that the Board of Commissioners of Boone County, its agents, employees, and attorneys, including the Boone County Health Department, are hereby permanently enjoined from enforcing against any of the Plaintiffs and Plaintiffs' customers any provisions contained in said Boone County Ordinance No. 81-3, and from taking any action to defeat the clear statutory and constitutional provisions cited herein as to the Plaintiffs' rights.

Dated this 24th day of April, 1982.